Q. Am I required to review I-9 documentation in person during the pandemic?
A. It depends, but change is coming soon.
Not long after President Biden declared the country in a state of national emergency due to the COVID-19 pandemic, the Department of Homeland Security (DHS) put in place the following rule:
Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers must inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.) and obtain, inspect, and retain copies of the documents, within three business days for purposes of completing Section 2. Employers also should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field once physical inspection takes place after normal operations resume. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate. These provisions may be implemented by employers for a period of 60 days from the date of this notice OR within 3 business days after the termination of the National Emergency, whichever comes first. Employers who take advantage of the COVID-19 rule must provide written documentation of their remote onboarding and telework policy for each employee. This burden rests solely with the employers.
Currently in place through April 30, this temporary guidance allows employers a bit more flexibility when it comes to I-9 forms, but there are several things employers should keep in mind:
- Once normal operations resume, the I-9 documents must be reviewed in person. It is important to keep track of all the I-9 forms completed under the COVID-19 rule, so employers follow up with employees to present the documents in person when the rule is no longer in place.
- This rule applies only to employers and workplaces operating remotely. If there are employees who are physically coming in to work, then their I-9 documents must be reviewed in person now; the temporary rule does not apply to such employees. Note that for these employees, Section 2 of the I-9 form must be completed within three days of their first day of work to be considered timely.
- Not reviewing I-9 documents in person is only temporary! For some employers, it took the implementation of the COVID-19 rule to realize that a physical review of the I-9 documents is an absolute requirement. Let’s say, for instance, that your company has just one office based out of Atlanta, but your company is hiring employees out of state who will work remotely. Those employees must either come into the Atlanta office to present the documents for inspection, or the company must designate an authorized representative at the employee’s location to inspect the I-9 documents and complete Section 2 on behalf of the employer (and note that the employer is still liable for any violations committed by the representative). Failure to comply with this rule is considered a substantive violation and can result in higher monetary fines in the event of a government audit.
If you have any concerns about how to complete the I-9 form, we are here to help. Please contact a member of the Troutman Pepper Immigration Team.